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  When, on top of these dangers, Casey arrived threatening to bring more troops to attack the camp, Plenty Horses sprang into action. "Casey armed himself and went out, as a spy, to learn the strength of the hostile camp," Powers said. "It was while Plenty Horses and Casey were riding together that Casey dropped some remark from which the prisoner inferred that the Indian camp was to be attacked and its members killed." Powers then pointed at Plenty Horses and intoned: "Yes, gentlemen, that incorrigible savage, loving his race with all the fervor of a fanatic, fired the bullet which killed the gallant Casey, and if he went before his God this hour he would go without a twinge of conscience or a fear of damnation. To save his people from such a fate, as a patriotic act, crazed by the wild orgies of the ghost dance, driven mad by the terrible recollections of Wounded Knee, he killed Casey to save his own people." Then the attorney hit his central theme: "Place the responsibility of Casey's blood where it belongs, not upon this deluded chief of the forest, but upon the damnable system of robbery and treaty violations which brought it about."12

  Nock and Powers' first witness was American Horse. He moved toward the front of the courtroom with "a black scowl on his face, and a red fan in his hand," reported the Argus-Leader. "He has been to Washington nine different times. He is one of the brass collars among the Sioux and his face shows him to be a strong character."13

  Nock went straight to the question of what had motivated Lakota actions in the closing weeks of 1890: "What was the condition of the Sioux before the trouble arose?"

  Sterling instantly objected, and Powers explained that he wanted to show the conditions that led the Lakota into a state of war. The court upheld the objection, declaring that "if such a vast field of inquiry were opened, it would open up the whole dealings of the white [sic] with the Indians since the time of Columbus. Such an investigation would be simply impossible."14

  Sterling objected again when Powers started to query American Horse about the ghost dance, which Nock pointedly called "the messiah craze," as if to underscore the cultural insanity that might have visited Plenty Horses. Sterling asked the judges to clarify the limits they had placed on testimony about reservalon warfare during the first trial. This question of whether a state of war existed on the reservation was a sticky one for Sterling. He had built his entire case for murder on a single linchpin: that the Lakota were not, and perhaps could not be, at war. If the defense proved anything to the contrary, Sterling's case fell apart.

  The judges said that such questions could be asked only to show Plenty Horses' frame of mind, not that of his people. Powers' next questions about the ghost dance and the flight to the Stronghold were all blocked by the court.

  The defense veered away from the war question when it called William Thompson, who stated that when White Moon returned from the Casey killing, he said he could not recognize the gunman because his face had been painted. Moreover, Thompson said, White Moon claimed to have fired two shots at the retreating killer. Powers had revealed White Moon as a liar, a revelation with an important effect. "As the Cheyenne are very anxious to secure a conviction of Plenty Horses [White Moon] undoubtedly falsified on the stand," McDonough explained. "The testimony of Thompson was listened to by the jury attentively, and it certainly impressed them."15

  When Thompson retired, Powers called Captain Frank Baldwin, but he could not be found, and the court adjourned until the following day. Baldwin's arrival in town had already been reported in the press, but his appearance as a witness for the defense rather than the prosecution was something of a surprise. Casey had been a friend to both Baldwin and Miles, and in any event, no one expected that the military would come down on the side of Plenty Horses.

  "WAS IT WAR? THAT IS the Vital Question of Today's Testimony," read the headline in the Sioux Falls Argus-Leader on the third day of the trial.16 Captain Frank Baldwin had been ordered by General Nelson Miles to answer that question, and he did so on the witness stand that day.

  Baldwin's appearance followed testimony from R. O. Pugh, the issue clerk at the Pine Ridge agency, who laid another plank in the defense platform. Pugh had served as issue clerk from October 5 to December 15, 1890, and explained that since January 15, 1891, the War Department had issued rations. Before that, he said, the Indians had received no food since the previous November. Those who went to the Stronghold naturally received no rations. They were referred to at the agency as "the hostiles," he said. When they surrendered—among them the people of Two Strike's band, including Plenty Horses and his family—they received food from the War Department. They were, in effect, treated as prisoners of war, Nock and Powers indicated.

  During Pugh's testimony, Powers scored a point from which McDonough thought the prosecution could not recover.17 "Did you ever hear, during your eight years' residence among the Sioux, of the Indians committing any depredations previous to the late trouble?" Powers asked.

  Sterling objected, and Powers instantly turned on him. "I am not surprised that the government should be blind to a fact that is cognizant to every man living at Pine Ridge, blind to the suffering of these poor, deluded savages, who are huddled together on as barren a soil as there is in America. Yes, they must be blind, for if the government knew of the actual suffering of these people, the horrors of starvation that has [sic] for years stared them in the face, which culminated in the ghost craze, and then again into the war of last winter, and finally in brave Casey's death, it would rise in its might and sweep away the systematic robbery that has been going on for years."

  The court overruled the objection.

  Under cross-examination, Sterling asked if Plenty Horses had ever joined in the ghost dances. "I do not know," Pugh answered. "The Indians who left the agency and went into the Badlands killed cattle belonging to whites and Indians. They had no rations from the government after they left. The rations issued by the military were issued to Indians not entitled to draw at our agency. We took care of those who were under our charge." This testimony indicated that the government was dividing the Lakota, implicitly or explicitly, into prisoners of war and nonprisoners. Sterling's case was splitting at the seams.

  * * *

  IRONICALLY, EDWARD CASEY'S FATHER IN the mid-1850s had used military imprisonment of an Indian warrior to deny civil officials the authority to hang him for killing a white man. Silas Casey, then a lieutenant colonel commanding the army's Puget Sound District, was up against a difficult personality, the governor of Washington Territory, Isaac T. Stevens. A West Point graduate, Stevens believed that as commander of the state militia he also was in charge of regular army troops stationed in the territory. He wanted to use the army to exterminate local Indians and to try as criminals any who were captured. Casey and his superiors of course did not agree that regular army troops should fall under Stevens' authority and also believed that captured Indians should be treated as prisoners of war, not criminals.

  The situation blew up over a Nisqually warrior chief named Leschi. When Leschi was accused in the murder of a man named A. Benton Moses, Stevens wanted him arrested. Casey let him run free. Stevens succeeded in bribing Leschi's brother into betraying his sibling, and Leschi was captured, tried, and sentenced to death in a civil court in December 1857. Casey tried to save him, contending that Leschi was a prisoner of war. Casey held Leschi at Fort Steila-coom, but when all attempts to get Leschi freed had run out, including a second trial, Casey turned over the Indian to the local sheriff. Leschi was hung on January 22, 1858.

  Thirty-some years had passed by the time the same issues came up in the murder of Edward Casey, but still the Leschi outcome stood as an ominous portent for Plenty Horses.

  CAPTAIN BALDWIN WAS CALLED NEXT to testify. He had visited the Wounded Knee battlefield, and Powers asked him what he saw there. Sterling objected. "There is nothing to show that the Indians who fought at Wounded Knee had anything to do with, or were known by, this defendant. They belonged to different tribes."

  The court overruled the objection, and Baldwin described
Wounded Knee: "I saw a great many dead Indians. I saw guns, ammunition, cooking utensils, et cetera, scattered everywhere. I saw over one hundred dead bodies of Indians, men, women and children. I saw a body which was said to be that of Big Foot. His body was at the west end of the string of bodies."18

  "How were the bodies dressed?"

  "They were dressed as warriors. All had on the 'war shirt.' "

  "Did you see the dead bodies of any soldiers?"

  "I did not."

  "Did you keep a record of the dead and wounded?"

  "Yes. There were one hundred and forty-nine Indians killed and thirty-eight wounded. There were forty-nine soldiers killed."

  "Was it a battle, Captain, the result of a war?"

  "It was without doubt. The Army was equipped as they should have been at such a time, sentinels were stationed, and Pine Ridge fortified." Sterling broken in: "I object."

  And the objection was sustained.

  But Baldwin was permitted to discuss the deployment of thousands of troops and the military fortifications, pickets, and sentinels at Pine Ridge.

  Then Powers asked, "Where was Plenty Horses first taken when arrested?"

  Sterling objected, and the court asked Powers, "What do you propose to prove?"

  "That the defendant was arrested as a prisoner of war, and that he was held as such," Powers replied. "I will show that Plenty Horses was held by General Miles as a prisoner of war, and that General Miles absolutely refused to deliver over the prisoner until certain conditions were complied with."

  "What do you mean?" Judge Edgerton asked testily. "The defendant was arrested on a warrant from this court, and I am not aware that this court has been put under conditions by General Miles."

  "I have seen all the correspondence between the War Department and the attorney general, in which the War Department absolutely refused to deliver over the defendant to the civil authorities until certain whites who had committed outrages were arrested and dealt with," Powers said, referring to the Culbertson brothers and others implicated in the Few Tails shooting.

  "The counsel has more light on the question than I had," Edgerton said. "What I meant to correct was that this court had made no conditions with General Miles. General Miles is in no position to exact any conditions from this court."

  "But. . . ," Powers began.

  Edgerton cut in. "The court is absolutely through with this matter."

  Baldwin went on to describe the concentration of forces at Pine Ridge to show that a state of war existed there. Powers asked Baldwin if Casey had been spying on the Indians, as Plenty Horses had contended. Baldwin said that Casey was supposed to report on the movements of the enemy. "We do not call such a thing spying," he corrected. "We call it reconnoitering."

  Next came William McGaa, an interpreter, who described the Drexel Mission fight, in which Plenty Horses had participated. He was followed by He Dog, who also described the mission fight and then the ghost dance. Again, Powers drove home a point about war at Pine Ridge: "Do you remember the day Casey was killed?"

  "Yes," He Dog said.

  "On the day before the killing were there any wounded Indians in your camp?"

  "Yes. They came in night and day, by twos and threes. Among them were many women and children—some of the children were very small. This created much excitement and much feeling."

  The defense recalled Broken Arm, who outlined the fortifications set up by the Indians, suggesting that their camp was built as a defense against the U.S. military.

  The following witness was E. P. White, the stenographer who had taken down the testimony of the first trial. He produced notes on Rock Road's statement that he was "afraid to go into the [hostile] camp." This reading proved that Rock Road's denial of his statement in the current trial was false.

  Then William Craven, the Cheyenne River reservation interpreter, testified that White Moon had told him, as he had told Thompson, that he did not know who shot Casey because the killer wore paint. Craven also said that White Moon claimed to have fired twice at the killer. Two witnesses had now debunked White Moon's testimony. A spectator in the crowd, White Moon became deeply troubled by these revelations.

  Two more witnesses appeared to corroborate that all the Brulé were hostile and that Plenty Horses was a member of the Two Strike band. On that note, the court adjourned until the next morning. At the close of the day, J. J. McDonough thought that Nock and Powers had the case sewn up: "To all appearances, they have matters in their own hands. All this may be attributed to the determination of the prosecuting attorney to prove that war was not in progress when Casey was shot, with the result of really weakening his case."

  By then editorial writers were interested in the case. During the week of the trial, the Omaha Bee opined: "Plenty Horses, by the help of the Indian Rights association [sic] is making a game fight for his liberty at Sioux Falls. In slaying Lieut. Casey he committed a cold-blooded murder. He should be given a fair trial according to the forms of law, and no technicality should shield him from the penalty of his crime."19

  ON THE FOURTH MORNING OF the trial, the defense team turned in several documents that bolstered the argument that the Lakota were at war when Casey was shot. They had General Miles's report indicating that Casey was killed while reconnoitering the hostile camp. They had Miles's order forbidding the delivery of Plenty Horses to civilian authorities until something was done about Few Tails's alleged killers, which indicated that Miles had control of Plenty Horses as a war prisoner. They had an order from Miles recognizing Plenty Horses as a war prisoner and directing him to be fed by the War Department as such. And they had the report of the lieutenant who arrested Plenty Horses, which showed that the officer did so without any authority from any civilian source, suggesting that the arrest was a military action. The judges adjourned at midday and said they would determine the standing of these documents that afternoon.

  White Moon, Casey's scout, left the courtroom severely depressed. He had been badly homesick for several days, but his sadness had redoubled after the previous day's testimony revealed his lies on the witness stand. From the court, he went to a local store and bought a knife with a two-and-a-half-inch blade, then returned to the Merchants Hotel and went to the room occupied by He Dog and another Lakota witness, Woman Dress, who were at lunch.20 There, White Moon took out his new knife, poised it over his shoulder, and plunged it down to the hilt behind his clavicle, hoping to reach his heart. He collapsed onto a bed, blood pouring from the wound and his mouth, but he was still conscious when He Dog and Woman Dress showed up. They called for a local doctor, who found that the knife had penetrated a lung. White Moon passed out for about an hour, but he proved his mettle: By 4 p.m. he was up and around again, though still feeling low, and was planning to go home the next day.

  Meanwhile, the trial went on. That afternoon, the court was so packed with women that hardly a man could be seen behind the bar railing. "It was ladies' day, sure enough," wrote J. J. McDonough.21

  At 1:30 or 2 p.m. Sterling announced that he would offer no rebuttal to the defense, and Nock rose confidently to say, "We are ready to argue our case."

  "Wait a moment, gentlemen," Judge Shiras cut in. "If you have both concluded the presentation of testimony, I have something to say to the jury." This development was irregular enough to set off alarm bells for the defense, and when Shiras next declared, "There is no need of going further with this case," without question he took away the breath of every man and woman in the courtroom.

  Quickly explaining, Shiras instructed the jury to bring in a verdict of not guilty. He told them that it was the court's legal responsibility to instruct them to do this in cases in which only a verdict of not guilty could be sustained. "From the entire evidence," he said, "it clearly appears that on the day when Lieutenant Casey met his death there existed in and about the Pine Ridge Agency a condition of actual warfare between the Army of the United States there assembled under the command of Major General Nelson Miles and the Indian
troops occupying the camp on No Water and in its vicinity. It is entirely clear that on the part of the Untied States this condition of actual existing warfare was recognized and the troops of the United States and the Indians had fought several engagements with more or less severity, and that both forces were then actually arrayed against each other."22

  He went on to say that Casey unquestionably was a combatant.

  While the manner in which Plenty Horses killed Lieutenant Casey was such as would meet the severest condemnation, nevertheless we cannot deny the fact that Lieutenant Casey was engaged in an act of legitimate warfare against the Indians, and was in such condition that he might be legitimately killed as an act of war by a member of the hostile camp against which he was then operating.

  It is clearly apparent that if on the same day a portion of the hostile Indians had intended to reconnoiter the fortifications and position of the United States troops, and while they were engaged in such expedition one or more of them had been shot and killed by a soldier belonging to the United States forces, that such an act would not be deemed to be an act of murder on the part of the white soldier, and justice requires the application of the same rule to the Indian as we would apply to the white soldier under reversed circumstances. It is apparent that the actions and the conduct of the troops of the United States at and about Pine Ridge Agency at the time that Lieutenant Casey was killed cannot be justified in all respects excepting upon the admission of the fact they were engaged in actual hostilities and warfare.

  Shiras explained that Casey died in the line of duty and that, consequently, "the judgment of the Court is that this jury would be compelled to hold, first that there was a condition of actual warfare existing at that time, and that Lieutenant Casey was actively engaged in operations as a member of the armed forces of the United States carrying on hostilities against the Indians." He pointed out that, had Casey killed an Indian while reconnoitering the camp, the officer would not have been charged with murder. "Under these circumstances, it is the judgment of the Court that a verdict of guilty could not be sustained and therefore the jury are [sic] instructed to return a verdict of not guilty."